Opinion
2013-03-12
Jessica DORFMAN, Plaintiff–Appellant, v. AMERICAN STUDENT ASSISTANCE, Defendant–Respondent, Education Resources Institute, et al., Defendants.
Jessica Dorfman, appellant pro se. Pitaro & Pitaro, Flushing (Vincent D. Pitaro of counsel), for respondent.
Jessica Dorfman, appellant pro se. Pitaro & Pitaro, Flushing (Vincent D. Pitaro of counsel), for respondent.
MAZZARELLI, J.P., SAXE, DeGRASSE, MANZANET–DANIELS, CLARK, JJ.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered January 7, 2011, which denied plaintiff's motion for summary judgment, granted defendants American Student Assistance's and Education Resource Institute's motions for summary judgment dismissing the complaint as against them, granted Education Resource Institute's motion for summary judgment on its counterclaim, and referred to a special referee the issues of the exact amount due on the counterclaim and the amount of attorneys' fees and costs to which defendants are entitled, unanimously affirmed, without costs.
Plaintiff failed to allege, let alone establish, her own performance under the contract, a necessary element of her breach of contract claim ( see Chappo & Co., Inc. v. Ion Geophysical Corp., 83 A.D.3d 499, 921 N.Y.S.2d 227 [1st Dept. 2011] ).
Education Resource Institute's prima facie entitlement to sums owed on two “private” loans was established by plaintiff's execution of promissory notes, her disclosure of the first “private” loan in the application for the second one, and her correspondence directing that certain payments be allocated to the “private” loans. Plaintiff's conclusory allegation that the “ private” loans were never funded and failed for lack of consideration fails to raise a triable issue of fact.
Plaintiff's objection to the motion court's separate recall and vacatur of a prior order referring the matter to a referee is improperly raised on this appeal.
We have considered plaintiff's remaining arguments and find them unavailing.